The Queen v Sharpe

[2008] NZCA 464

IN THE COURT OF APPEAL OF NEW ZEALAND

CA482/2008
[2008] NZCA 464

THE QUEEN

v

GREGORY DEAN SHARPE

Hearing:21 October 2008

Court:Baragwanath, Priestley and Venning JJ

Counsel:C B Wilkinson-Smith for Appellant

K Raftery for Crown

Judgment:4 November 2008 at 12pm

JUDGMENT OF THE COURT

THE APPEAL AGAINST SENTENCE IS DISMISSED.

____________________________________________________________________

REASONS OF THE COURT

(Given by Baragwanath J)

[1]       This appeal is against a total sentence of six years three months imprisonment following pleas of guilty to charges relating to the manufacture of methamphetamine.

Previous relevant offending

[2]       The appellant had been convicted in January 2003 on charges of possession of utensils for the manufacture of drugs and obstructing the police.  The following month he was convicted and sentenced to three years imprisonment for the manufacture of Class A and Class B drugs.  In October 2003 he was convicted and sentenced to a cumulative two year term for the manufacture of Class B drugs. 

The Whitford charges (July 2006)

[3]       In July 2006 the police executed a search warrant at an address in Whitford.  The police located equipment, solvents and chemicals including toluene, acetone and hydrochloric acid.  Pseudoephedrine was present in pharmaceutical products.  A clandestine laboratory was in operation in the garage where the methamphetamine had been manufactured.  The appellant admitted assisting its manufacture.  He identified one Ethelstone as the main cook. 

[4]       A few days before trial he pleaded guilty to three charges – of possession of equipment capable of being used to manufacture methamphetamine with the intention that it be so used, with possession of material of capable of being used for the commission of such offence with similar intention, and with possession of precursor substances with like intent.

The Pukekohe charges (February 2007)

[5]       While the appellant was on bail on the July 2006 charges, in February 2007 police officers checking his presence at a Pukekohe address detected a strong chemical smell and entered the premises exercising powers under the Misuse of Drugs Act 1975.  The appellant and a co-offender, Mr Ethelstone, were present together with the appellant’s partner and another woman.  As the police attempted to enter the garage the appellant began walking away.  He was warned that if he continued to do so he would be arrested for obstruction.  He ignored the warning and ran off.  He was apprehended but he broke free.  He released a dog which ran at the officers barking aggressively.  The officers tried again to restrain him.  He struggled violently, lashing out with his arms before again breaking free and running off.  He was tackled a short distance away and again struggled with officers before breaking three a third time, and he ran across several paddocks before being recaptured and handcuffed.  In the course of the struggle a constable sustained a lower back injury, a small cut to his left little finger and bruised right knuckles. 

[6]       ESR analysts identified the presence on the premises of all the chemicals required for the extraction of pseudoephedrine for pharmaceutical preparations and for the conversion of pseudoephedrine to methamphetamine in usable form as well as the relevant equipment used in the methamphetamine manufacturing process.  ESR estimated that the precursors substances and liquids would yield between 5.4 and 8.1 grams of methamphetamine. 

[7]       The appellant pleaded guilty to one charge of manufacturing methamphetamine and one of aggravated assault on one of the police officers.

The High Court sentence

[8]       Courtney J recorded that the appellant was 47 years of age with a longstanding methamphetamine addiction.  In Australia in the 1980s he had become involved in drugs including methamphetamine and cocaine and on returning to New Zealand again became involved in drug use and manufacture.  Following his release in June 2005 from the five-year sentence for the manufacture of methamphetamine, he completed a residential rehabilitation programme which (as the present charges show) was unsuccessful.

[9]       The Judge stated that because the Whitford and Pukekohe offences were unconnected she would impose cumulative sentences although recognising that the cumulative term must satisfy the totality principle and reflect the offending overall.

[10]     In respect of the Whitford offences the ESR estimate of the potential yield from the pseudoephedrine on hand was 26 – 29 grams of methamphetamine.  Citing R v Anderson CA425/06 23 April 2007 and R v Johnston CA448/05 16 May 2006, she fixed a starting point of two years and nine months.  She adjusted that upwards to three years to reflect the previous convictions.  She granted a discount for the late plea of guilty and fixed the sentence as two years and three months on each charge, to be served concurrently. 

[11]     On the Pukekohe offending the Judge accepted that there was limited evidence of commerciality but was satisfied that the offending should be treated as a commercial operation.  While she accepted that because of the appellant’s longstanding addiction a portion of the methamphetamine manufacture was for the appellant’s use, she considered that the presence of Mr Ethelstone and the woman showed that he was manufacturing for purposes beyond personal use.  The Judge held that the case fell at the lower end of Band 2 in R v Fatu [2006] 2 NZLR 72 (CA) on the basis of manufacture partly for personal use and partly for commercial use. She took seriously the fact that the offending occurred while there was a child living in the house who was exposed to risk of explosion and the escape of noxious fumes. She adopted a starting point of five years uplifted to six years to reflect previous convictions and the fact that the offending while on bail. The guilty plea, while not made early, provided a significant saving in terms of trial cost and time. She reduced the six years to four years.

[12]     On the charge of aggravated assault Courtney J regarded the assault on a police officer trying to do his job as a serious matter, even if the injuries were minor, and imposed a concurrent 18 month term.

[13]     The Judge rejected the option of home detention. Courtney J observed that to qualify for home detention rehabilitation of the offender must be a realistic outcome.  She found that there was no such prospect in this case.  A previous attempt at rehabilitation after completing the Bridge programme in 2005 had been unsuccessful.  While the Odyssey House programme might provide a greater prospect of success she was not prepared to accept the risk given that there was little real family support and the appellant’s motivation and readiness to change were assessed by the probation officer was only medium.

Submissions on appeal

[14]     For the appellant, Mr Wilkinson-Smith submitted that the total sentence of six years and three months imprisonment infringed the totality principle expressed in s 85(2) of the Sentencing Act: “cumulative sentences must not result in a total period of imprisonment wholly out of proportion to the gravity of the overall offending”.  He referred to the facts:

(1)The appellant is a drug addict whose main motivation was personal supply;

(2)The Whitford charges did not involve actual manufacture;

(3)The expected yield of methamphetamine in the Pukekohe offending was small.

[15]     He submitted that the Judge should have employed the approach adopted in R v Morris HK AK CRI 2005-090-4458 28 September 2005. 

[16]     Mr Morris had been sentenced in February 2005 on two different sets of charges relating to offending in 2003 and 2004.  The former involved the manufacture of methamphetamine and cannabis oil, possession of pipes and possession of methamphetamine.  The latter involved possession of equipment to manufacture methamphetamine, possession of precursor substances and two charges of failing to complete community work.  The charges involved manufacture of methamphetamine at the prisoner’s home.  He was on bail at the time of the 2004 offending.  The only mitigating factor was the guilty plea.  Heath J had imposed a total sentence of four years imprisonment comprising three years for manufacturing methamphetamine plus one year for possession of equipment and precursors. 

[17]     The September 2005 sentencing related to a third set of offending, which occurred in March 2004 and comprised manufacture of methamphetamine and possession of precursor chemicals.  Potter J held that the circumstances were very similar to the previous offending, namely small scale manufacture of methamphetamine.  She took a starting point of four years imprisonment with a one year reduction for a guilty plea. However, for totality reasons she added only one year to the four years imprisonment imposed by Heath J. 

[18]     Counsel for the appellant further submitted that the sentence was disproportionate in relation to the sentence imposed on Mr Ethelstone in relation to his role in the Pukekohe offending, although he too was on bail for drug-related offences, was in breach of a 24 hour curfew, and had a criminal history including 29 previous convictions including 12 drug-related charges.  He was sentenced to 12 months home detention with the condition that it be served entirely at Odyssey House.

Discussion

[19]     We did not find it necessary to call on the Crown to add to its written submissions. 

[20]     On the argument of disparity, Mr Ethelstone had been sentenced by Courtney J on 11 April 2008 on the basis that he had gone to the Pukekohe property to buy methamphetamine, and when there was none available the appellant decided to make it while Mr Ethelstone waited.  During that process Mr Ethelstone provided some minor assistance.  He was sentenced on the basis that his involvement was primarily as a customer providing such assistance rather than a principal in the manufacturing process.  The Judge received in relation to Mr Ethelstone, letters evidencing support from family and former employers.  She accepted that Mr Ethelstone was now a user not a manufacturer and was motivated to change.

[21]     The principles are discussed in R v K (CA345/02) (2003) 20 CRNZ 62 at [20]: parity means treating like cases alike and others with due regard for relative differences.  Here there is no relevant comparison with the appellant that would lead an observer to consider that something had gone wrong with the sentencing process: cf R v Autagavaia [1985] 1 NZLR 398 at 400 (CA) per Cooke J.

[22]     As to totality, the Judge’s approach of building the totality allowance in to the individual sentences before adding them rather than making a deduction at the end is perhaps unconventional.  But what matters is the ultimate result. 

[23]     Mr Wilkinson-Smith submitted on the basis of Morris that Courtney J should have added to the four-year Pukekohe term no more than one year for the Whitford offending.

[24]     We disagree.  The appellant is a persistent offender with an abysmal record relating to the manufacture of methamphetamine prior to the present offending, for which he had received the five-year sentence.  With that record he committed the Whitford offending.  While on bail he committed the Pukekohe offending.  In the course of that offending he assaulted the police officer.

[25]     The approach to be taken is set out in Fatu at [40] ff:

[40]  As a matter of principle, an offender should only be sentenced in relation to offending which he or she admits or which the Crown can prove…. On the other hand, the Courts must take a realistic view of the dynamics of this particular form of offending. Those who gear up to manufacture methamphetamine are not likely to be content with a single “cook”. As was recognised in Worth v R [2001] WASCA 303 at para [50], the “practical potential of the operation” must be a relevant consideration.

[41] A principled approach is to recognise that manufacturing methamphetamine necessarily involves criminality at two levels: first, the possession of equipment for the purpose of manufacturing (which is an offence against s 12A of the Misuse of Drugs Act) and secondly, the actual use of that equipment to manufacture methamphetamine. When offenders put together the equipment to manufacture methamphetamine, the culpability of their conduct is closely associated with the likelihood that the equipment will be used for that purpose…

[42]  … it is right to recognise that methamphetamine manufacture is always (or almost always) going to involve significant commerciality. We say this because the difficulties, expense and risks involved in manufacturing methamphetamine make it inherently unlikely that such an operation would be set up to produce drugs for purely personal consumption.

[43]  In those circumstances we consider that appropriate sentencing bands for those who are the primary offenders in methamphetamine manufacturing operations should be based on uplifts of 10 per cent – 20 per cent on those applicable in the case of importers:

…

(b)Band two – manufacturing up to 250 g – four years’ to 11 years’ imprisonment.

…

The sentence imposed must reflect not only the quantity of the drug involved, but also the role of the particular offender in the manufacturing ring in question.

[26]     The appellant’s offending was persistent.  Society is entitled to denunciation of his conduct and to protection from further offending during a substantial period in prison.  Deterrence is a further factor of importance.  No doubt the appellant’s offending was fuelled by his addiction. While in the case of an addict who is a candidate for rehabilitation the Court may exceptionally pay closer attention to personal circumstances than is required by the Supreme Court judgment in R v Jarden [2008] NZSC 69 at [12] and [14], this appellant has shown himself unable or unwilling to respond to the type of mercy extended to Mr Ethelstone. It is in his interests to be removed for a substantial time from the community and given such opportunity as is available in prison to attempt rehabilitation.

[27]     On a conventional basis the Judge could have taken the Whitford offending as the lead charge.  Given the offending in 2003, the risks to a child living at the address and the fact that the appellant was on bail, a starting point of six years could have been justified.  To recognise the Pukekohe offending as well that could have been uplifted to eight.  We do not accept the submission that totality would limit the increase to a single year.  While a prisoner’s prospects for the future should not be crushed, that interest must be balanced against the other purposes of sentencing.  Those who consider re-offending in such a manner must not be permitted to think that the risk will be worth taking because the Courts will take a sympathetic approach.  Here there is in addition the offending against the police officer, which required a deterrent sentence that could have justified an additional year, making nine years in all. 

[28]     The Judge made an allowance of 25 per cent for the plea of guilty entered five days ahead of trial (Whitford) and one third for a similar plea entered six weeks ahead of trial (Pukekohe).  In terms of the discussion by this Court in R v Hannagan CA396/04 9 June 2005 such allowances were more than generous.  An allowance of 25 per cent for the pleas of guilty would have resulted in a sentence of six years nine months.

Decision

[29]     The sentence was well within the range available to the Judge.  The appeal is dismissed.

Solicitors:

Crown Solicitors, Auckland